# C_2021062EN.01000601.xml

| 22.2.2021 | EN | Official Journal of the European Union | C 62/6 |
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22.2.2021

EN

Official Journal of the European Union

C 62/6

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Judgment of the Court (Fifth Chamber) of 17 December 2020 (request for a preliminary ruling from the Szegedi Törvényszék — Hungary) — BAKATI PLUS Kereskedelmi és Szolgáltató Kft. v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága

(Case C-656/19) (1)

(Reference for a preliminary ruling - Common system of value added tax (VAT) - Directive 2006/112/EC - Exemptions on exportation - Article 146(1)(b) - Goods dispatched or transported outside the European Union by a customer not established within the territory of the Member State concerned - Article 147 - ‘Goods to be carried in the personal luggage of travellers’ not established within the European Union - Concept - Goods which have actually left the territory of the European Union - Proof - Refusal of the exemption on exportation - Principles of fiscal neutrality and proportionality - Tax evasion)

(2021/C 62/05)

Language of the case: Hungarian

Referring court

Szegedi Törvényszék

Parties to the main proceedings

Applicant: BAKATI PLUS Kereskedelmi és Szolgáltató Kft.

Defendant: Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága

Operative part of the judgment

| 1. | The exemption provided for in Article 147(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax in respect of ‘goods to be carried in the personal luggage of travellers’ must be interpreted as meaning that that exemption does not cover goods which an individual not established within the European Union takes with him or her outside the European Union for commercial purposes with a view to the resale of those goods in a third State; |
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1.

The exemption provided for in Article 147(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax in respect of ‘goods to be carried in the personal luggage of travellers’ must be interpreted as meaning that that exemption does not cover goods which an individual not established within the European Union takes with him or her outside the European Union for commercial purposes with a view to the resale of those goods in a third State;

| 2. | Article 146(1)(b) and Article 147 of Directive 2006/112 must be interpreted as not precluding national case-law under which, where the tax authority finds that the conditions for the value added tax (VAT) exemption for goods to be carried in the personal luggage of travellers have not been satisfied, but that the goods concerned have actually been transported outside the European Union by the purchaser, that authority is required to examine whether the VAT exemption under Article 146(1)(b) may be applied to the supply in question even though the applicable customs formalities have not been completed and even though, at the time of the purchase, the purchaser did not intend to have that exemption applied; |
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2.

Article 146(1)(b) and Article 147 of Directive 2006/112 must be interpreted as not precluding national case-law under which, where the tax authority finds that the conditions for the value added tax (VAT) exemption for goods to be carried in the personal luggage of travellers have not been satisfied, but that the goods concerned have actually been transported outside the European Union by the purchaser, that authority is required to examine whether the VAT exemption under Article 146(1)(b) may be applied to the supply in question even though the applicable customs formalities have not been completed and even though, at the time of the purchase, the purchaser did not intend to have that exemption applied;

| 3. | Article 146(1)(b) and Article 147 of Directive 2006/112, and the principles of fiscal neutrality and proportionality, must be interpreted as precluding a national practice under which the tax authority automatically denies a taxable person the benefit of the value added tax (VAT) exemption provided for by each of those provisions where it finds that that taxable person has, in bad faith, issued the form on the basis of which the purchaser has made use of the exemption provided for in Article 147, where it is established that the goods concerned have left the territory of the European Union. In such circumstances, the VAT exemption provided for in Article 146(1)(b) must be refused if infringement of a formal requirement has the effect of preventing the production of conclusive evidence that the substantive requirements governing the application of that exemption have been satisfied or if it is established that that taxable person knew or should have known that the transaction in question was involved in fraud jeopardising the functioning of the common system of VAT. |
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3.

Article 146(1)(b) and Article 147 of Directive 2006/112, and the principles of fiscal neutrality and proportionality, must be interpreted as precluding a national practice under which the tax authority automatically denies a taxable person the benefit of the value added tax (VAT) exemption provided for by each of those provisions where it finds that that taxable person has, in bad faith, issued the form on the basis of which the purchaser has made use of the exemption provided for in Article 147, where it is established that the goods concerned have left the territory of the European Union. In such circumstances, the VAT exemption provided for in Article 146(1)(b) must be refused if infringement of a formal requirement has the effect of preventing the production of conclusive evidence that the substantive requirements governing the application of that exemption have been satisfied or if it is established that that taxable person knew or should have known that the transaction in question was involved in fraud jeopardising the functioning of the common system of VAT.

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(1)  OJ C 95, 23.3.2020.

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